Judge Says Court Got Cablevision Wrong

NEW YORK — Judge Denny
Chin says the court got it wrong with a ruling that allowed Cablevision to
deploy server-based digital video recording without content provider consent. That
2008 decision redefined TV signal copyright law, and is now the basis of
Aereo’s contention that it has a legal right to redistribute those signals
without permission. Aereo is the New York-based start-up aggregating and
reselling broadcast signals to mobile subscribers.

“Cablevision was wrongly decided,” said
Judge Chin in a dissent of his colleagues’ refusal this week to convene an en banc hearing on WNET, et al, v. Aereo.

“…Rehearing these cases en banc would
also give the court the opportunity to reconsider Cablevision,” he said.

In the Cablevision case, networks
sued over the provider’s deployment of set-tops that enabled storage of content
at Cablevision facilities for playback at home. The legality of this remote
storage rested on whether or not playback was deemed a “public” performance,
and therefore subject to copyright protection; or a “private” performance not
likewise protected.

The U.S. District Court for the Southern District of New York, then under Judge
Chin, defined Cablevision’s remote DVR as a public performance based on the
collective audience of a given performance. The Second Circuit vacated and
reversed the decision and the U.S. Supreme Court denied cert.

Judge Chin continues to maintain that Cablevision’s technology comprises a
public performance.

“It makes no difference whether each member of the public receives the work by
means of several individualized, asynchronous transmissions, or a single shared
transmission,” he wrote.

“Cablevision’s focus on whether the
public is capable of receiving each individual transmission and the
technicalities of how that transmission process works is incompatible with the
statute,” he wrote. “By declining to rehear these cases en banc, the court misses an opportunity to reconsider Cablevision and correct its
misinterpretation of the Copyright Act.”

Even if Cablevision was correctly
decided, Judge Chin said it should be limited to the facts of the case and not
applied as a precedent for Aereo. Cablevision agreed in an amicus brief filed with the Second Circuit last September.

“Aereo’s
system is nothing like—much less ‘materially identical’ to the RS-DVR for
copyright purposes,” Cablevision’s brief stated. “Unlike Aereo, Cablevision
operates a licensed cable system that retransmits content to subscribers
pursuant to agreements with content providers.”

Aereo claims to retransmit TV signals to individual subscribers through one of
thousands of dime-sized antennas closely packed in arrays, making the service a
private performance.

“Under this theory, Aereo
maintains that it may, for example, stream the Super Bowl ‘live’ to 50,000
subscribers and yet, because each subscriber has an individual antenna and a
‘unique’ copy of the broadcast, these are not ‘public’ but ‘private’
performances,” Judge Chin wrote.

Several
radio frequency engineers have said that because of the nature of UHF TV
signals, an array of tiny antennas would work instead as a single antenna,
rendering Aereo’s service a public performance.

The broadcast plaintiffs in the Aereo case had requested a hearing of the entire
Second Circuit Court of Appeals bench following the April 1 denial of an
injunction by a three-judge panel, which included Judge Chin. He also dissented
on that decision, calling Aereo’s technology a “Rube Goldberg-like
contrivance, over-engineered in an attempt to avoid the reach of the Copyright
Act and to take advantage of a perceived loophole in the law.”

With his most recent dissent, Judge Chin referred to Aereo’s technology as a
“sham.”

July 9, 2013: “Aereo
Launches on PlayOn Software”
MediaMall Technologies said Tuesday that its PlayOn software will now make
Aereo local TV channels accessible to Aereo TV users on select gaming consoles,
set-top boxes and Android devices. ~ from TWICE

June 28, 2013: “Aereo’s
Unlikely Proposition”
“Anyone who has taken antennae 101 knows that tiny pieces of metal separated by
tiny distances act as one piece of metal.”
April 1, 2013, “Aereo,
Two-Love”
Broadcasters
were denied an injunction against signal aggregator Aereo for the second time
today when the U.S. Court of Appeals for the Second Circuit rejected their
premise.

August 6, 2012:Report: Aereo Legality Could Hinge on PatentsAereo’s copyright infringement case may rest on its patents, according to ReadWriteWeb,
which quotes an IP expert
saying that patents typically have “no relevance” in copyright cases, but that
Aereo is an exception.